Ross et al v. Balderas et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

D.N.M.November 30, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ANDREW ROSS and SUSAN GERARD, Plaintiffs, v. Case No. 1:16-cv-1121-PJK-SMV HECTOR BALDERAS, et al., Defendants. DEFENDANT LYNN PICKARD’S MOTION TO DISMISSPlaintiffs, unsatisfied with the outcome of several pieces of litigation in the Santa FeMagistrate Court and the First Judicial District of New Mexico, eschewed their appellateremedies and instead come to this Court with implausible - indeed, hardly conceivable -allegations of criminal conduct by virtually every judicial officer in Santa Fe, New Mexico.Not content with criticizing current judicial officers, Plaintiffs also allege conduct on behalfof the former Chief Judge of the New Mexico Court of Appeals that, according to Plaintiffs,constitutes wire fraud and obstruction of justice. Even under the lenient 12(b)(6) standard,Plaintiffs’ claims against Defendant Pickard fail to state a claim upon which relief can begranted. BACKGROUNDPlaintiffs come to this Court with incredible allegations of a mafia-style conspiracydenying justice in the First Judicial District (or at least in Santa Fe County) to all litigantsbut those who happen to be lesbians. Plaintiffs take 89 pages to lay out their faciallyimplausible claim and theory, and include in their dragnet almost every judge on themagistrate and district courts in Santa Fe County, attorneys and paralegals in private DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 1 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 1 of 13 practice, the Attorney General of New Mexico, attorneys employed by the DisciplinaryBoard, and one former Judge of the New Mexico Court of Appeals. Plaintiffs contend thatthe conspiracy identified - which is allegedly concerned principally with exulting the rightsof lesbians over all other persons - violates the Racketeering Influenced and CorruptOrganizations Act, 18 U.S.C. §§ 1961, et seq., and allege that each defendant committedseveral predicate acts violating both federal and New Mexico law. ARGUMENT AND AUTHORITYPlaintiffs seek damages from Defendant Pickard under RICO on the strength ofallegations that she committed wire fraud and bribery, aided and abetted extortion, andcommitted several acts of obstruction of justice. The allegations against Defendant Pickarddo not meet the pleading standard established in Bell Atl. Corp. v. Twombly, 550 U.S. 544(2006), and Ashcroft v. Iqbal, 556 U.S. 662 (2008). Even if they did, the conduct allegeddoes not make out a cognizable RICO claim. Defendant Pickard is thus entitled to thedismissal, with prejudice, of the Amended Complaint. I. PLAINTIFFS’ AMENDED COMPLAINT DOES NOT MEET THE PLEADING STANDARDS OF TWOMBLY AND IQBAL.As an initial matter, a valid RICO claim must allege that a defendant “(1) participatedin the conduct (2) of an enterprise (3) through a pattern (4) of racketeering.” BancOklahoma Morgage Corp. v. Capital Title Co., 194 F.3d 1089, 1100 (10th Cir. 1999). Rule9(b) requires that a RICO plaintiff allege with particularity not only the elements of a RICOviolation, but also each predicate act of racketeering. See Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 989 (10th Cir. 1992). As detailed below, Plaintiffs badly fail to meetthese requirements. DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 2 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 2 of 13 In Twombly, the Supreme Court held that Federal Rule of Civil Procedure 8(a)(2)“requires more than labels and conclusions” from a complaint. Twombly, 550 U.S. at 555. Inparticular, “a formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allen, 478 U.S. 265, 286 (1986)). Following Twombly, in Ashcroft v. Iqbal, 556 U.S.662, 679 (2008), the Supreme Court held that when a complaint provides “well-pleadedfactual allegations, a court should assume their veracity and then determine whether theyplausibly give rise to an entitlement to relief.” Such allegations must be more thanconceivable, they must be plausible. Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10thCir. 2012). A claim is plausible if and only if the factual content allows a court to draw reasonable inferences that the defendant is liable. Iqbal, 556 U.S. at 678. Plaintiffs’allegations against Defendant Pickard fail to meet these pleading standards. A. Plaintiffs Do Not Allege Wire Fraud By Defendant Pickard.Plaintiffs first allege that Defendant Pickard committed wire fraud, pointing toParagraphs 177 through 179 in support of that allegation. (Amended Complaint, ¶ 327.)Those allegations do not plausibly give rise to an entitlement of relief. In Paragraph 177,Plaintiffs allege Defendant Pickard believes “lesbian rights are superior to those ofheterosexuals” and that she “offers advice, funding, and whatever other help may be toensure that they prevail over any heterosexual opponent.” Paragraph 178 contains only theallegation that Defendant Pickard is a director of Santa Fe Seniors on Bikes and thatDefendant Pamela Reynolds is also a director of the same organization. Nothing in either ofthese paragraphs hints at the use of interstate telephone lines at all, much less the use ofsuch lines to commit fraud. Similarly, neither paragraph discusses extortion in any way. DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 3 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 3 of 13 Paragraph 179 at least implies the use of the telephone, but makes no allegation ofthe use of the telephone in interstate commerce, a necessary element of wire fraud. See 18U.S.C. § 1343 (“Whoever, having devised . . . any scheme or artifice to defraud . . . transmitsor causes to be transmitted by means of wire, radio, or television communication ininterstate or foreign commerce . . . .”). Such vague, conclusory allegations do not passmuster under Twombly and Iqbal, and Defendant Pickard is entitled to their dismissal. B. Plaintiffs’ Allegations Of Extortion Are Insufficient.As it relates to aiding and abetting extortion, Paragraph 179 alleges only that, uponPlaintiffs’ information and belief, Defendant Pickard “would assist Richards in his extortioncampaign against Gerard by coordinating with Singleton as to the movement of thepleadings through the First Judicial District in furtherance of the Criminal Enterprise.” Thisallegation does not meet the plausibility standard of Iqbal. It contains no specific factualallegations about the alleged coordination and is, instead, the kind of formulaic recitation ofthe elements of a cause of action the Twombly Court specifically rejected. See Twombly, 550U.S. at 555.Plaintiffs assert a second instance of aiding and abetting extortion by DefendantPickard in Paragraph 336 of the Amended Complaint. In support of that allegation,Plaintiffs refer to back to Paragraphs 168 through 172 of their Amended Complaint.Paragraph 168 through 170 do not mention Defendant Pickard at all, focusing instead onDefendant Robert Richards and Defendant Jane Gagne.In Paragraph 171, Plaintiffs allege, upon information and belief, that DefendantGagne “receives bribes . . . from Richards (due to his many bar complaints) and/or from the DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 4 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 4 of 13 Sisterhood protecting Richards, including Singleton and Pickard.” The remainder of theparagraph generally alleges that Defendant Gagne ensured Defendant Richards would notbe disciplined by the New Mexico bar. Paragraph 172 contains the allegation that, “[u]poninformation and belief, Gagne was informed by Pickard to silence Ross in furtherance of theCriminal Enterprise.” The paragraph goes on to allege that Defendant Gagne attempted tosilence Ross by threatening him with prosecution for the unauthorized practice of law. Atmost, this paragraph contains a conclusory statement that the Sisterhood, through Pickard,bribed Defendant Gagne, but this is no more than a conclusory (and incomplete) statementof the elements of bribery. Neither paragraph makes a concrete allegation of factconcerning specific conduct by Defendant Pickard sufficient to meet the Twombly and Iqbalstandards. As with the allegations discussed above, these do nothing to move theplausibility needle far enough to avoid dismissal. Courts routinely dismiss claims based onsuch conclusory allegations. See, e.g., Tapia v. City of Albuquerque, 10 F. Supp. 3d 1323, 1409(D.N.M. 2014) (finding insufficient as a matter of law a Section 1983 claim amounting to“nothing more than conclusory allegations of conspiracy”) (quoting Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998)) (brackets and internal quotation marksomitted). C. Plaintiffs’ Allegations Of Obstruction Of Justice Are Also Insufficient.All told, Plaintiffs allege eight instances of obstruction of justice by DefendantPickard. See Amended Complaint, ¶¶ 328-335. To support those allegations, Plaintiffspoint to Paragraphs 60, 61, 69, 93, 94, 118, 125, 134, 139, 140, 142, 156, 157, 168 through172, and 228 through 231. Of those paragraphs, the only ones that even mention DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 5 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 5 of 13 Defendant Pickard are Paragraphs 94, 140, 157, 171, 172, 228, and 230. None of theseparagraphs allege conduct by Defendant Pickard that rises above the level of vague,conclusory statements based entirely on Plaintiffs’ objectively unreasonable belief. At best,Plaintiffs allege that Defendant Pickard has contacted various state court judges presidingover the series of litigation that birthed this complaint in an effort to influence theprocedure by which those pieces of litigation are handled. Plaintiffs make no allegationsthat Defendant Pickard has substantively interfered with any pending litigation, surmisingonly that she has tried to slow that litigation down. These kind of conclusory allegationsare insufficient to their task, and the Court should so hold. D. Plaintiffs’ Lone Allegation Of Bribery Is Not Sufficiently Pleaded.Finally, Plaintiffs allege a single instance of bribery by Defendant Pickard inParagraph 334 of the Amended Complaint. In support of that allegation, Plaintiffs point toParagraphs 168 through 172 of their Amended Complaint. Those paragraphs are discussedin Section I(B) above, and Defendant Pickard will not waste the Court’s time with a seconddissection of why they are mere conclusions devoid of the required factual specificity. Itsuffices to note that absolutely nothing in any of those paragraphs could even liberally beread to allege bribery of any sort. II. PLAINTIFFS’ RICO CLAIM AGAINST DEFENDANT PICKARD FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.Even if Plaintiffs’ allegations clear the minimal pleading hurdle established by Twombly and Iqbal, they fail to state a cause of action upon which relief can be grantedbecause none of the predicate acts alleged against Defendant Pickard involve interstate orforeign commerce. In other words, even accepting the truth of Plaintiffs’ allegations, none DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 6 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 6 of 13 of those allegations establish wire fraud in violation of 18 U.S.C. § 1343, extortion inviolation of 18 U.S.C. § 1951, or obstruction of justice in violation of 18 U.S.C. § 1503.Finally, Plaintiffs do not allege conduct sufficient to make out a case of extortion or briberyunder New Mexico law. A. Plaintiffs Do Not Allege The Disruption Of Or Interference With Interstate Commerce Or Attempted Influence Of Federal Court Proceedings Required For RICO Predicate Acts.Even if Plaintiffs’ vague allegations are sufficient to survive Twombly and Iqbal, theysuffer from a fatal legal defect: Plaintiffs flatly do not allege the interference with eitherinterstate commerce or federal judicial proceedings absolutely required to establish thepredicate acts upon which they rely for their RICO claim against Defendant Pickard, theonly cause of action they assert against her. To prevail on a RICO claim under Section 1962,a plaintiff must prove a violation of 18 U.S.C. § 1962. Under all three subsections of Section1962, the alleged “racketeering activity” must implicate interstate or foreign commerce. See RJR Nabisco, Inc. v. European Cmty., __ U.S. __, 136 S. Ct. 2090, 2105 (2016) (“Each ofRICO’s substantive prohibitions requires proof of an enterprise that is engaged in, or theactivities of which affect, interstate or foreign commerce.”) (citing 18 U.S.C. §§ 1962(a), (b),and (c)) (internal quotation marks omitted); see also United States v. Rogers, 636 F. Supp.237, 244 (D. Colo. 1986) (describing affect on interstate commerce as an “essentialelement” of a Section 1962 RICO claim). As detailed below, Plaintiffs have failed to allegesuch a nexus to interstate commerce. Defendant Pickard is thus entitled to the dismissal,with prejudice, of the only cause of action alleged against her. See Fernandez v. Town of Pahrump, 424 Fed. Appx. 687, 688 (9th Cir. 2011) (unpublished) (affirming dismissal of a DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 7 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 7 of 13 RICO claim where the plaintiff “did not allege facts suggesting a pattern of racketeeringactivity or any nexus to interstate commerce.”).1 1. Plaintiffs do not allege any wire fraud involving interstate or foreign commerce in violation of 18 U.S.C. § 1343.As already noted, Plaintiffs allege that Defendant Pickard engaged in wire fraud inviolation of 18 U.S.C. § 1343 as a RICO predicate act. See Amended Complaint, ¶ 327. Inaddition to being inadequately pled under Twombly and Iqbal, this allegation fails to state aclaim under Rule 12(b)(6) because there is no allegation in the amended complaint thatDefendant Pickard interfered in any way with interstate or foreign commerce. This is, ofcourse, an essential element of wire fraud under Section 1343: “Whoever, having devised . . .any scheme or artifice to defraud . . . transmits or causes to be transmitted by means ofwire, radio, or television communication in interstate or foreign commerce” anycommunication in furtherance of the fraud “shall be fined under this title or imprisoned notmore than 20 years.” 18 U.S.C. § 1343 (emphasis added). Plaintiffs do not meet thiselement because they allege only conduct occurring entirely within the borders of NewMexico. 2. Plaintiffs do not allege any extortion involving interstate or foreign commerce in violation of 18 U.S.C. § 1951(a).The same problem plagues Plaintiffs’ allegations, in Paragraphs 327 and 336, thatDefendant Pickard aided or abetted extortion under 18 U.S.C. § 1951(a), which prohibitsobstruction of commerce “by robbery or extortion.” Though Section 1951(a) does not, like 1 Also, because the criminal statutes on which Plaintiffs rely do not provide for a private cause of action, Plaintiffs’ failure to meet the requirements of RICO is a failure to allege a cognizable claim under Rule 12(b)(6). See Harberson v. Hilton Hotel Corp., 616 F. Supp. 864, 866 (D. Colo. 1985); Creech v. Fed. Land Bank, 647 F. Supp. 1097, 1099 (D. Colo. 1985). DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 8 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 8 of 13 Section 1343, use the phrase “interstate or foreign commerce,” its application is necessarilylimited to such commerce by virtue of the limited powers granted to the federalgovernment under Article I of the United States Constitution. See, e.g., Stirone v. United States, 361 U.S. 212, 215 (noting that Section 1951 “speaks in broad language, manifesting apurpose to use all the constitutional power Congress has to punish interference withinterstate commerce by extortion, robbery, or physical violence.”). Here again, Plaintiffs’have not alleged any conduct by Defendant Pickard that crosses state lines, and theirallegation that Defendant Pickard has violated Section 1951 thus fails as a matter of law. 3. Plaintiffs do not allege any obstruction of justice involving any federal judicial proceeding in violation of 18 U.S.C. § 1503(a).The next allegations to fail on these grounds are the allegations found in Paragraphs328 to 335 that Defendant Pickard obstructed justice in violation of 18 U.S.C. § 1503(a),which makes it a crime to “influence, intimidate, or impede any grand or petit juror, orofficer in or of any court in the United States.” All of Plaintiffs’ allegations concern actionsin Santa Fe County Magistrate Court and the First Judicial District of New Mexico. Plaintiffsdo not allege, because they cannot, that Defendant Pickard interfered in any way with ajudicial proceeding pending in any federal court. Plaintiffs’ claim that Defendant Pickardviolated Section 1503(a) fails. 4. Plaintiffs do not allege any bribery of a federal official in violation of 18 U.S.C. § 201.Finally, Plaintiffs allege in Paragraph 334 of the Amended Complaint that DefendantPickard engaged in bribery prohibited by 18 U.S.C. § 201. But, as with every other predicateact based on federal law, Plaintiffs nowhere in the Amended Complaint allege that DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 9 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 9 of 13 Defendant Pickard ever gave or offered to give anything of value to any federal official. See18 U.S.C. § 201(a)(1) (defining “public official” to be members of Congress, Delegates, andResident Commissioners). Thus, as with all of the predicate acts Plaintiffs allege arisingunder federal law, this one fails as a matter of law on its face. B. Plaintiffs’ Allegations Do Not Make Out An Act Of Extortion Or Bribery Punishable By New Mexico Law.18 U.S.C. § 1961(a) identifies the predicate act of extortion “chargeable under Statelaw and punishable by imprisonment for more than one year.” New Mexico law definesextortion to be the making “of any threat to another by any means whatsoever with intentthereby to wrongfully obtain anything of value or to wrongfully compel the personthreatened to do or refrain from doing any act against his will.” NMSA 1978, § 30-16-9. Thesame provision makes extortion a third degree felony.Plaintiffs rely on the allegations in Paragraphs 168 through 172 and 177 through179 in support of their claim that Defendant Pickard aided and abetted extortion as a RICOpredicate act. See Amended Complaint, §§ 327, 336 (identifying the enumeratedparagraphs as containing the allegations of fact to support allegations of aiding andabetting extortion). Only two of those paragraphs could be reasonably read to touch onextortion in any way: Paragraph 172 and Paragraph 179. Paragraph 172 alleges thatDefendant Gagne threatened Ross with prosecution for the unauthorized practice of law inan attempt to tell him “to shut up and stop fighting.” It also alleges that Defendant Pickard“informed” Defendant Gagne to silence Ross. Even accepting Plaintiffs’ allegation as true, itdoes not touch on extortion, as there is no allegation that either Defendant Gagne orDefendant Pickard demanded from Ross anything of value. There is also no allegation that DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 10 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 10 of 13 Defendant Pickard instructed or otherwise conspired with Defendant Gagne to threatenRoss’s prosecution. Finally, official immunity would shield Defendant Gagne from anyclaims of extortion in response to her suggestion that Ross had engaged in theunauthorized practice of law, just as prosecutors are immune for their prosecutorialdecisions, and for the same reasons: it inures to the benefit of the public for those officialstasked with policing the legal profession to be able to do so without fear of reprisal. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 423 (1976) (recognizing that the considerationsunderlying prosecutorial immunity “include concern that harassment by unfoundedlitigation would cause a deflection of the prosecutor’s energies from his public duties, andthe possibility that he would shade his decisions instead of exercising the independence ofjudgment required by his public trust.”). Plaintiffs have not made out a cognizable claimthat Defendant Pickard has aided or abetted extortion, and this Court should so hold. Plaintiffs also include in Paragraph 334 of their Amended Complaint an allegationthat Defendant Pickard committed bribery in violation of NMSA 1978, § 30-24-1, and insupport of that allegation rely on Paragraphs 168 through 172 of the Amended Complaint.Section 30-24-1 defines bribery as the “giving or offering to give, directly or indirectly,anything of value to any public officer or employee” with the intent of somehow influencingthat public officer’s official acts. As noted above in discussing Plaintiffs’ allegations ofbribery in violation of federal law, the cited paragraphs of the Amended Complaint describeno conduct even hinting at the giving of something of value to a public officer. The Courtshould thus find that the Amended Complaint fails to allege bribery by Defendant Pickard. DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 11 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 11 of 13 C. Plaintiffs’ Allegations Do Not, As A Matter Of Law, Establish The Continuing Pattern Of Racketeering Activity Required Under RICO.Finally, Plaintiffs fail to allege any pattern of racketeering activity by DefendantPickard. RICO requires allegations of “(1) conduct (2) of an enterprise (3) through a pat-tern (4) of racketeering activity.” Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (citing Gillmor v. Thomas, 490 F.3d 791, 797 (10th Cir. 2007)). “A single scheme to accomplish onediscrete goal, directed at a finite group of individuals, with no potential to extend to otherpersons or entities, rarely will suffice to establish a threat of continuing activity.” Erikson v. Farmers Grp., Inc., 151 Fed. Appx. 672, 677-78 (10th Cir. 2005) (unpublished) (citing Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1556 (10th Cir. 1992); Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir. 1990) (other citation omitted). Plaintiffs’ meager factualallegations against Defendant Pickard fail as a matter of law to establish anything close tothe required “continuing pattern” of racketeering activity. See Religious Tech. Ctr. v. Wollesheim, 917 F.2d 364, 367 (9th Cir. 1992) (per curiam) (“A pattern of activity lastingonly a few months does not reflect the ‘long-term criminal conduct’ to which RICO was in -tended to apply”); Alter v. DBLKM, Inc., 840 F. Supp. 799, 810 (D. Colo. 1993) (“[R]acketeeingpredicates which take place pursuant to a specific business transaction lasting only a fewmonths are not evidence of a specific threat of continuity”); see also Antonacci v. City of Chicago, 640 Fed. Appx. 553, 557 (7th Cir. 2016) (unpublished) (affirming dismissal offriolous RICO claims on grounds of failure to establish continuity where “the entire schemelasted only 21 months” and was directed at a single alleged victim) (citing Gamboa v. Velez,457 F.3d 703, 709-10 (7th Cir. 2006)). This failure by Plaintiffs provides an independentbasis on which to dismiss with prejudice their claims against Defendant Pickard. DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 12 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 12 of 13 CONCLUSIONPlaintiffs’ claims are both inadequately pleaded and fail as a matter of law.Defendant Pickard thus seeks an Order from this Court dismissing with prejudice everyclaim asserted against her in the Amended Complaint. Respectfully submitted,/s/ Scott FuquaScott FuquaFUQUA LAW & POLICY, P.C.P.O. Box 32015Santa Fe, NM 87594(505)982-0961 - Telephonescott@fuqualawpolicy.com Attorney for Defendant Lynn Pickard CERTIFICATE OF SERVICEI hereby certify that I served a true and correct copy of the foregoing on all counsel ofrecord via filing with the CM/ECF system on November 30, 2016./s/ Scott FuquaScott Fuqua DEFENDANT LYNN PICKARD’S MOTION TO DISMISS - Page 13 of 13 Case 1:16-cv-01121-PJK-SMV Document 72 Filed 11/30/16 Page 13 of 13